Peaceful Uses of Outer Space and
I. Introduction: Confusion of terms
The term "peaceful uses of outer space" appears in official government statements and multilateral treaties. However, the examination of the state practice leads to the conclusion that this term is still without an authoritative definition. It is a source of considerable confusion and creates a legal grey area.
The widely accepted interpretation of this key term of space law prior to the begin of space age, namely that "peaceful" means "non-military", was soon contradicted by the practice of two space powers. In the period between 1957 and the adoption of the Outer Space Treaty in 1967, these two powers had placed into orbit a number of military payloads and had come increasingly dependent on space technology in their military planning. Since the term "peaceful" continues to be used it is useful to examine the meaning of this ambiguous adjective.
II. History of the term "peaceful"
The term "peaceful" in connection with outer space uses appeared already before the first satellite was launched. US Ambassador Lodge expressed in 1957 the hope, that future developments in outer space would be devoted exclusively to peaceful and scientific purposes. Therefore he proposed that the testing of satellites and missiles be placed under international inspection and participation. A few months later, Secretary of State Dulles, announced the willingness of the United States to establish a system which would insure that outer space missiles would be used exclusively for peaceful and scientific purposes and for the benefit of mankind. In August 1957, Canada, France, the United Kingdom, and the United States called for a study of an inspection system that would assure that the launching of objects through outer space would be exclusively for peaceful and scientific purposes. This proposal was incorporated in UN-General Assembly resolution 1148 (XII). This was a fundamental document, not only because it represented the first General Assembly resolution on outer space but also because it introduced the phrase "exclusively for peaceful purposes" in an UN resolution. President Eisenhower also took part in the debate. He proposed to the USSR, that the two nations agree to use outer space only for peaceful purposes and not for the testing of missiles designed for military purposes. This statement, underlines that the term peaceful, even after the launching of Sputnik I, was being used by the USA as a counterpart to military in the context of outer space activities.
The topic "Questions of the Peaceful Use of Outer Space" was discussed during the 13th UN General Assembly in 1958. In the debate, nearly all states used the term "peaceful" contrary to "military". Therefore the common understanding was to avoid any military use whatever. The General Assembly adopted after a long discussion the resolution A/1348 (XIII), which recognized as the common aim of peoples that outer space should be used for peaceful purposes only. One important result of this resolution was the establishment of the ad hoc Committee on the Peaceful Uses of Outer Space (COPUOS), which became a regular committee of the General Assembly in 1959. However, neither of these resolutions, nor the comprehensive report of the ad hoc Committee of 1959, attempted to interpret or clarify the term "peaceful".
While the states, including the space powers, were demanding that outer space be devoted exclusively to "peaceful" purposes, the USA and the USSR were secretly developing satellites that were to serve military objectives. On a highly classified basis the U.S. Air Force contracted the development of reconnaissance satellites already in 1955. From the beginning U.S. space programs have been primarily of a military, not a civilian or scientific nature. Also Soviet space programs over-all have always been driven more by military considerations and requirements than civilian and scientific ones. In 1958 the legal position of the USA with respect to the meaning of the phrase peaceful uses became quite different from the initial rhetoric. The new interpretation meant non-aggressive rather than non-military. Accordingly, all military uses are permitted and lawful as long as they remain non-aggressive. By contrast, the USSR publicly insisted that peaceful meant non-military and that in consequence all military activities in outer space were "non-peaceful" and possibly illegal. In the light of the military uses of space by the USSR this reflected a lot of hypocrisy.
The use of the term "peaceful" is not limited to outer space documents. After the foundation of the United Nations the term has appeared in several important multilateral agreements, namely, in the Statute of the International Atomic Energy Agency (IAEA), the Antarctic Treaty, the Treaty for the Prohibition of Nuclear Weapons in Latin America, the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, the Chemical Weapons Convention and in the UN Convention on the Law of the Sea. Some examples show the connection in which the term peaceful has been used.
b) Article I of the 1959 Antarctic Treaty declares that Antarctic shall be used for peaceful purposes only. It explicitly prohibits any measures of a military nature as well as the testing of any type of weapons on the continent. This formula can be understood as the demilitarization of the Antarctic. It is based on the premise that to exclude armaments is easier than to eliminate or control them once they have been introduced. This treaty has often been characterized as the most authoritative interpretation of the term peaceful.
c) Article 88 of the 1982 Convention on the Law of the Sea, prescribes laconically that the high seas shall be reserved for peaceful purposes. In that context the term peaceful does not mean non-military, because the high seas are navigated by a lot of war ships used for tests of nuclear missiles as well as for military maneuvers. Therefore it is difficult to find the reason for the inclusion of the reference to peaceful purposes.
III. The term peaceful purposes in multilateral treaties on outer space
IV. The legal content of "peaceful" under modern space law
After the adoption of the Outer Space Treaty there were many efforts to elaborate an interpretation of the term peaceful as used in the Treaty. This was due to the continuing and rapid expansion of military space activities of the two superpowers that were also the main authors of the treaty. Whereas the results of the attempts in interpretation remain unfinished to this day, through their conduct before and especially after the conclusion of the treaty, the two leading users of outer space provided the legal meaning to the term peaceful. Under the 1969 Vienna Convention on the Law of Treaties, the words in a treaty must be interpreted in accordance with their ordinary meaning. In general the term peaceful is defined as disposed or inclined to peace; aiming at or making for peace; friendly, amicable, pacific. It is obvious that this description cannot be applied to any current or past military use of space. However, Article 31, of the Vienna Convention provides that in the process of interpretation any subsequent practice in the application of the treaty shall also be taken into account.
The International Court of Justice declared in the North Sea Continental Shelf Cases concerning the development of customary international law that in addition to widespread practice and representative participation in a convention, the practice must include states whose interests are especially affected. In space law this means that the practice of even one space power, clearly a specially affected state, carried substantial weight in law. That is especially true when this practice is supported by several other states with developing space capabilities. Under consideration of the ambiguity of the term peaceful, as well as the practice of the two state actors in outer space, the conclusion is doubtless that all military uses of space other than those prohibited by treaty were - since the beginning of space exploration and are still today - lawful as long as they do not violate any of the principles and rules of general international law. No state has ever formally protested such an interpretation of the phrase peaceful uses.
In practice, the military presence in space grew so rapidly that outer space is the most heavily militarized environment, based on the number of military and civilian payloads launched into orbit. Therefore it has been suggested that the term peaceful in the Outer Space Treaty should be reserved only for non-offensive space installations, i.e., for civilian spacecraft and military space hardware other than space weapons. As a de lege ferenda proposal, this suggestion merits attention. However, this is not to say that the legality of some systems in outer space could not be questioned. Nevertheless, because only a widely endorsed multilateral treaty or a declaration by the World Court could designate a particular weapons system or activity in outer space to be unlawful, given the unlikelihood of any such treaty and the traditional reluctances of states to resolve their differences through international adju-dication, the legal characterization of such uses could remain uncertain for a long time.
In the light of these developments it is not surprising that one has some difficulties with the interpretation of the terms peaceful uses and peaceful purposes. These terms remain the object of contradictory interpretations even though the principal space powers had agreed to treat all military activities in outer space as permitted except those explicitly prohibited by treaty or customary law. Even the term military in the context of space activities and space uses creates problems in interpretation because civilian satellites, such as Landsat, SPOT, can be and are being used for military purposes.
V. Military uses and international law
The military of many states have come to rely heavily on outer space technology. This is especially true for surveillance and communications satellites, not merely for the armed forces of these countries but also for monitoring compliance with arms limitation agreements as so-called national technical means of verification. Without satellites, performance of many military missions would become impossible, and performance of others would require large increase in the unit strengths of various U.S. force elements. The great potential of satellites for military functions was discovered soon after the be-gin of space activities and that early discovery explains why military uses of space quickly acquired the status of a lawful activity.
Even after the end of east-west-confrontation the reaching of agreement on military uses of outer space seems not possible. This is due to the complexity of the problem involved both in preventing the deployment of space weapons and in defining the kinds of military activities that might not be legitimately conducted in space. Therefore the peace-loving nations will need also in future patience, good faith and respect for the concerns of the human race.
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